No Provision For Waiver Of Notice U/s 124(a) Of Customs Act To Confiscate Goods: Delhi HC Orders Return Of Luxury Item

The Delhi High Court while ordering the return of a luxury item confiscated from an Overseas Citizen of India by the Customs officials, reminded the department that there exists no provision for waiver of the Notice required to be issued under Section 124(a) Of the Customs Act for the same.

The Court was considering a writ petition seeking direction to the Revenue Department for return of items allegedly confiscated in violation of the Customs Act.

The division bench of Justice Vibhu Bakhru and Justice Swarana Kanta Sharma held, "There is no averment in the counter affidavit to the effect that an oral show cause notice was issued to the petitioner calling upon her to show cause why the item in question be not confiscated. Absent any such notice (whether in writing or in oral), we are unable to accept that the provisions of Section 124(a) of the Act are satisfied. It is also material to note that it is not the stand of the Customs Authorities in their counter affidavit that any such oral notice was issued. On the contrary, it is claimed that no such notice is required to be issued as the petitioner had waived the same. Concededly, there is no provision for waiver of the notice as prescribed under the statute."

The Petitioner was represented by Advocate Amit Chadha while the Respondent was represented by SSC Shubham Tyagi.

The Petitioner, an Overseas Citizen of India (OCI) Card holder alleged that when she arrived in Delhi along with her husband and her child, was intercepted by the Customs Officers. At the material time, she was wearing a watch of a well-known luxury brand and the same was detained by the authorities despite being something of 'personal effect'. She further stated that she has no knowledge about the whereabouts of the detained item and no show cause notice has since been issued to her for any further action under the Customs Act, 1962.

She said that she did not receive any communication from the Customs Authorities informing her of further proposed action in respect of the detained item. It was also averred that her representative made personal visits to the Customs Department multiple times but the Department remained non-responsive.

The Court, at the outset, noted that it is apparent from the counter affidavit that it is not disputed that a show cause notice under Section 124(a) of the Act was not issued to the Petitioner. It further added that although it is claimed that the Petitioner was called upon to furnish the evidence of purchase of the detained item and the remittance made, it is admitted that no such written communication was served on the Petitioner

The Court rejected the contention of the Counsel for the Revenue that it is not necessary that a show cause notice under Section 124 of the Act be issued in writing and the said notice can also be issued orally as 'unmerited'.

Noting that no similar averments were made in the counter-affidavit, the Court asserted that the provisions of Section 124(a) of the Customs Act were not adhered to.

"We are of the view that in the facts of the present case, the item seized by the Revenue is required to be returned forthwith as the provisions of Section 124 of the Act have not been complied with," the court observed.

The petition was accordingly allowed.

Cause Title: Ms. Shubhangi Gupta vs. Commissioner of Customs & Ors.

Appearances:

Petitioner- Advocate Amit Chadha, Advocate Sambhav Jain, Advocate Atin Chadha, Advocate Munisha Chadha, Advocate Harjas Singh Chhatwal and Advocate Saarthak Sethi

Respondent- SSC Shubham Tyagi

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